Honorable J. S. Murchison
Executive Director
State Department of Fublic 'Nelfare
Austin, Texas
Dear Sir: Opinion No. O-5399
Re: Construction and applica-
tion Of Senate Bill NO.
169, Acts 48th Leg,,
Regular Session.
We have your letter of June 10, 1943 requesting
our opinion on a number of questions concerning the above
captioned subject.
Senate Bill No. 169, supra, including its title,
whereas clauses and'emergency clause, reads as follows:
"AN ACT
to amend Section 21 of Article 695c, of the
Revised Civil Statutes of the State of Texas
of the Year 1925 Codification, Chapter S,,un-
der Title 20, being the Public Welfare Act of
1941, also being House Bill No. 611 passed by
the Regular Session of the 47th Legislature of the
State of Texas, by adding a new section thereto to
be known as sub-section 21a providing that the De-
partment of Public Welfare shall not consider in-
come derived in payment of labor actually performed
or service rendered by the needy recipients of old
age assistance or who may hereafter be placed on
said rolls, where the total amount for any calendar
year does not exceed Two Hundred Fifty ($250.00)
Dollars, and declaring an emergency,
-
Bonorable J. S. Murchison, Page 2,
'WHEF?EAS,The United States is how engaged
in a tremendous war effort again& the Axis
Fowers which has resulted in a serious and acute
loss of man power in certain industries, and
particularly in agriculture; and
WJ%FJ?EAS,~,The
Secretary of Ag,riculture,as
well as the National Selective Service Director
and other prominent leaders in the nation's war
effort, now predict that there will be a great
ford shortage facing our country during the cur-
rent year which would not only tend to stifle our
war efforts at home and abroad but would greatly
slow down and curtail supplies to our allies under
the Lend Lease Frogram; and
'WHEREAS, The National Selective Service
Director now estimates that at least one million
(1.,OOO,OOO) soldiers and sailors will have to be
released from the armed forces, where they are so
greatly needed, so as to return to the farms in
order to avoid an acute shortage ~of food; and
"WHEREAS, It has been the policy of the
Department of Public Welfare, under House Bill
No. 611, to remove old age assistance recipients
from~the trolls in the cases where such recipients
temporarily engage in remunerative employment;
with the r’esult that such old age assistance re-
cipients have been constantly threatened with
being removed from the rolls in cases where they
accepted employment; and
"WEREAS, It would be in furtherance of the
war effort to relax the policies, rules and regu-
lations of the Department of Public Welfare during
this period of great emergency; in order to permit
such recipients to do seasonal or temporary work
without being threatened with removal from the
pension~rolls, and thereby relieve the strain on
agriculture and labor; now therefore BE IT ENACTED
BY THE LECISL?TURE OF TBE STATE OF TEXAS:
-
Honorable J. S. Murchison, Page 3
"Section 1. That Section 21 of Article
695c, of the Revised Civil Statutes of the
State of Texas of the Year 1925 Codification,
Chapter 8, under Title 20, being the Public
Welfare Act of 1941, also being House gill
MO. 611 passed by the Regular Session of the
47th Legislature of the State of Texas be
amended by adding a new and additional section
at the end thereof to be known as Section 21a,
which shall hereafter read as follows:
'Section 21a. Provided, however, that
until the United States of America has con-
cluded and entered into treaties of peace with-
all of the nations with whom she is now at war,
commonly referred to as the Axis Powers, no
grant of assistance to any recipient of old age
assistance who is already on the rolls or who
may hereafter be placed on said rolls, and is
already receiving old age assistance, shall be
reduced or revoked by reason of the fact that
any such needy recipient may derive or receive
other and additional income to take care of his
additional needs above his grant, from seasonal
or occasional employment, until and unless such
needy recioient shall receive more than Two
Hundred Fifty ($250.00) Dollars of outside and
additional income during a calendar year; pro-
vided said recipient of old age pension reports
,his said employment, in writing, to the local
office of Public Welfare, giving the name and
address of his employer or employers at the end
of each month, and giving the amount of his
earnings during the month just passed. Provided
further, that neither the State Department of
Public Xelfare nor any of its district or county
agencies in the county or district in which the
needy aged person resides shall give any consid-
eration to any such income received by recipients
of old age assistance up to the amount of Two
Hundred Fifty (;;25O.C0)Dollars that is actualiy
derived and received in payment for labor actually
performed or services rendered during a calendar
year.~
Yonorable J. S. Xurchison-,Page 4
"It is the declared purpose of this section
to encourage recipients of old age assistance to
aid in overcoming,the greatshortage of manpower
during this great wa~remergency by performing
necessary labor when and wherever possible without
being faced with the possibility of having pen-
sions reduced, or being removed from the pension
rolls altogether."
"Sec. 2. The fact that the United States
of America is now engaged in a world-wide war,
the prosecution of which is beins greatly hin-
dered,because of an acute shortage of manpower,
especially farm labor; and the further fact
that it has been the policy of the Department
of Public Welfare to consider income and other
resources of aged persons who are the recipients
of old age assistance by either reducing pensions
or removing such persons from the cension rolls
altogether, and because of such policy Were is
a hesitancy and reluctance on the part of such
old age recipients to engage in necessary labor
which will either directly or indirectly aid in
the prosecution of the war, creates an emergency
and an imperative public necessity that the
Con-titutional Rule requiring bills to be read
in each House on three several days be suspended,
and the Constitutional Rule requiring bills to go
into effect ninety days fro= and after their
passage, be and the same are hereby suspended,
and this Act shall take effect and be in force
from and after its passage, and it is'so enacted."
Your first question is:
'Toes Senate Bill No. 159 apply to recipients
on the rolls as of a certain date? If so, what
date?"
Senate Bill No. 169 provides that "no grant of
assistance to any recipient of old age assistance who is
already on the rolls or who may hereafter be placed on sa
FlonorableJ. S. Murchison, Fare 5
rolls, and is already receiving old age assistance, shall be
reduced or revoked” by reason of earning certain income.
It is clear from the plain language of the Act that its
provisions apply,to all those persons who, at the time of
the effective date of said Act, ase on the rolls and are
already receiving old age assistance. In addition, we
must give some effect to the phrase “or who may hereafter
be placed on said rolls.” If we say that said phrase is
modified by the phrase ‘Iandis already receiving old age
assistance”:,it is rendered entirely meaningless because
it is impossible for there to be a person who my hereafter
be placed on said rolls~who is already receiving old a&a
assistance.
The phrase “or who may hereafter be placed on
said rolls” was added to Senate Bill 169 by Senate Amend-
ment. Senate Journal, p. 93S, April 27, 1943. Ye must,
therefore, give this phrase some meaning because,it cannot
be presumed that the Legislature added a phrase to the Act
which would be without meaning. To do this we must say
that the phrase “or who may h-,reafterbe placed on said
rolls” is not modified by the phrase which immediately
follows it.
It follows that the provisions of Senate Pill
?30.169 apply to all persons who were receiving old age
assistance at the time said Act became effective and to
all persons who are subsequently placed on the rolls and
given old age assistance.
Your second guestion is:
“Does Senate Bill No. 169 apply to the
income being received bv persons applying for
assistance after the effective date of the Act?
If not, what effect should the gepartment give
to t’:ephrase ‘or who may hereafter be placed
on said rolls’?”
In our opinion, the only purpose of Senate Bill
No. 169 is to prevent the State Dc_nartmentof FubliO Welfare
.
Bonorable J. S. Kurchisnn, Pa(ge6
from reducing or revoking old age assistance grants by reason
of the fact that the recipients thereof rnceive certain addi-
tional income from seasonal or occasional employment. It
follows that Sexate Bill Wo. 169 does not apply to the in-
come being received by persons applying for assistance after
the effective date of the Act. T::isfor the reason that
said Act applies only to certain incom? of those individuals
receiving old age assistance and not to the income of those
individuals applying for such assistance. It is only after
such individuals have been placed on the rolls and granted
old age assistance that they become recipients Who may
hereafter be placed on said rolls". It follows that after
such individuals have been given a g:rantof assistance, the
provisions of Sei?;teBill ?$o.169 become immediately operative
and they would be entitled to earn an additional income of
$25Q.O0 per calendar year from seasonal or occasional employ-
ment without having their grant of assistance reduced or re-
voked.
Your third question is:
"Does the phrase 'outside and additional
income' !,Lused in Semte Bill No. 169 mean
only income other than income which has already
been considered by the Dcr;I'tmentin determining
eligibility and amount of grant of a given reci-
pient?"
1.o.mmt;r to your third question, it is our opinion
that the phrase l'outsideand additional income" mans income
other than that incme which has already been considered by
the State Dcpartiznt of Public mlfare in determining elibi-
bility and amount of grant of a given recipient. To illus-
trate: "x" received old age assistance in the amount of
$20.00 in Kay, 1943. This.paymentwas based on a finding by
the State Deparlxlantof .Public%lfare that he needed ji30.00
per month to provide himself with the basic necessities and
because he had auincome of 310.00 per month. Still needing
only $30.00 per month, "x'~subsequently obtains employment
Ponorable J. S. Plurchison,Page 7
from which he receives an additional income of $250.00 per
calendar year. The phrase in question has reference to the
$350.00 but has no reference to the $10.00 per month income.
We might add that in our opinion the term "such income" as
used~in Senate Bill Ko. 169 has reference to and means the
same thing as "outside and additional income".
Your fourth question is:
Yloes Senate Bill No. 169 apply to a recip-
ient who had no'income on the effective date of
the AC%? If so, what effect should be given the
words Tadditional' and 'outside' in reference to
income?"
In answer to your fourth question, we are of the
opinion that the provisions of Senate Bill No, 169 applies
to every recipient on the old age assistance rolls as of Kay
1, 1943 irrespective of whether such recipient had any income
as of that date. We find no language in the Act which, to US,
evidences a legislative intention to limit the provisions of
.thisAct to that group of old age recipients who actually had
an income as of the effective date of said Act. To our minds
the words "additional" and "outside11are used in a.descriptive
sense to identif~ythe particular income to which the Act has
application.
Since your fifth and sixth questions are somewhat
related, we will discuss them together. Said questions are
as follows:
“5. Does Senate Bill No. 159 apply to a re-
cipient receiving additional income from seasonal
or occasional employment if the income is for nur-
poses other than 'to tak? care of his additional
needs above his grant'?"
"6. Does the phrase meads above his grant'
as used in Senate Bill No. 169 mean the difference
in the recipient's budgeted needs and the total of
bis previously determined income and assistance
grant?"
Honorable J. S. Murchison, Page 8
In replying to these questions, we deem it appro-
priate to refer to several sections of House Bill No. 611,
Acts 47th Leg., R. S. P. 914 (Codified as ArtiCle 695c,
V. A. C. S.) since the Act in question, Senate Bill No. 169,
is an amendment thereto. Section 20 (5) provides:
Vet. 20. Old Age Assistance shall be given
under the provisions of this Act to any needy
persons:
*. . . .
"(5) :Nho has not sufficient inccme or other
resources to provide a reasonable subsistence com-
patible with health and decency. Provided that in
consideration.of income and resources actually
available to applicant the State Ag:encyshall not
evaluate.income and resources which may be available
only to relatives of applicant. Income and resources
to be taken into consideration shall be known to exist
and shall b5!available to the applicant. An applicant
for old age assistance shall not bo denied assistance
because of the existence of a child or other relative,
exc5:nthusband or wifa;who is able- to contribute to
the applicant's support? and no inquiry shall be made
into the.financial ability of said child or other
relative, exceot husband or wife, in dotermining ap-
plicant's eligibility. The applicant's child or
other relative, except husband or wife, is to be
treated by the State 3epartm?nt in the same way as
any person not related to the applicant; any aid or
contributions to the applicant from such child or
other relative, except husband or wife, must actually,
exist in fact, or with reasonable certainty, be avail-
able in the future to constitute a resource to the
applicant."
Section 21 provides:
"Sec. 21. The amount of assistance which
shall be given under the provisions of this Act
to any individual as old age assistance shall be
determined by the State Department through its
district or county agencies in the county or dis-
trict in which the needy aged person resides with
due consideration to the income and oth,erresources
Of such aged person and in accordance with the rules
FionorableJ. S. Kurchison, Page 9
and regulations of the State Department. A voluntary
statement by any child or other relative, except hus-
band or wife as to the amount and kind of aid or as-
sistance he is contributing or expects to contribute
to an applicant for old age assistance shall be ac-
cepted by the State Departmont as prima facie'evidence
of the availability and amount of such contribution;
provided, howcver, that actual contributions to the
apolicant must be considered by the State Department.
The amount of assistance given shall provide such
aged person with a reasonable subsistence compatible
with decency and health! within the limitations and
provisions of the Constrtution of Texas as are nQrl
provided, or may hereafter be provided."
The above quoted provisions clearly provide that old
age assistance shall be given to those who do not 'have suffi-
cient income to provide a reasonable subsistance compatible
with health and docancy. It is further provided that such as-
sistance shall be given which will provide a qualified person
with a reasonable.subsistence compatible with health and de-
cency, By authority of thase provisions, the State Department
of Public Welfare grants assistance to a qualified person by
determining the amount of money such person n-ads to provide
himself with'the basic necessities less the amount of his
income, subject however to the Constitutional limitation.
That is to say, if a person has income it is applied on
his needs and the,grant of assistance rcprjsents need above
income. It follows that when a person receives an amount
of income in excess of his needs or equal to his needs, he
iS not entitled to old age assistance as is provided by
House Bill No. 611, supra (Article 69%).
From what we have said, it follows that if the
phrase "to take care of his additional needs above his grant'?
be literally construed, then Senate Bill No. 169 means little,
if anything, not already provided for by existing law. Illuse
tration No. 1: "x7'was placed on the old age assistance rolls
on January 1, 1943 with a grant of $20.00 per month. At that
time, the Department of Public Welfare determined that he
needed $35.00 per month to provide himself with the,basic
necessities and that be had an income earned from employment
Honorable J. S. Murchison, Page 10
in the amount of $15.30 per month. The grant of assistance
($20.00) represents his amount of needs ($35.00) less his
amount of income ($15.00). As long as '*x7'needs no more
than $35.00.per month to provide himself with the basic
necessities, he would not be entitled to the benefits of
Senate Bill No. 169 because he has no additional needs.
Therefore, if the phrase "to take care of his additional
needs above his grant" be given its literal meaning, Senate
Bill No. 169 would heve no application to that group of.por-
sons typified by the above illustration.
Illustration No. 2: Suppcsa that on July 1, 1943
the State Department of Public Welfare finds that, due to
the rise in the cost of living and/or other factors, '*x'*
needs $55.00 per month to provide himself with the basic
necessities. Under the existing law and without the need
of Senate Bill No, 169, "~'9could increase his earnings by
an additional $20.00 per month and this additional income
would in no way $opardize his grant of old age assistance
in the amount of j2O.OC per month. Th,eamount of his grant
($20.00) would still represent his amount of needs ($55.00)
less the amount of his income ($35.00).
A third illustration is where an individual needs
$55.00 per month to provide himself with the basic necessities
and has no income. Due to statutory and constitutional
limitations, the State Department of Public Welfare can grant
him no more than $30.00 per month. It is quite true that his
needs are in excess of his grant but under the existing law
and without the application of Senate Bill No. 169, this indiv-
idual would be permitted to accept employment and earn therefrom
the difference ($25.00) between the amount he needs ($55.00)
and the $30.00 grant. He could earn this difference and his
grant of $30.00 would not be affected in any way.
The above illustrations show that if the phrase
involved in this question be given its literal or strict
meaning, Senate Bill No. 169 is entirely meaningless be-
cause it would not provide anything not already provided
for by existing law. Recognizing the fact that the Legis-
lature did not intend to do a useless and vain thing, and
since such construction is not favored in law, we shall
Honorable J. S. h!urchison,Page 11
attempt to construe the phrasa in question to conform with
the apparent purpose of the Act as expressed in it title,
whereas clauses and emergency clause. When we do this, we
arrive at the conclusion that the Lsgislature believed that
there exists at this time and during the present emergency
an area of "need" in addition to and above that "need" which
the State Department of Public Welfare determines that is
necessary to provide an individual with th,3basic necessities.
Therefore, to give some meaning to the phrase *'totake care
of his additional needs above his grant," we arrive at the
conclusion that an individual may earn $250.00 per calendar
yaar from seasonal or occasional employment whidh amount is
in addition to the amount found by the State Department of
Public Welfare to be necessary to provide the individual with
the basic necessities. In illustration No, 1, rlxtvwould be
entitled to earn said $250100 in addition to the $15.00 in-
come he already had. In illustration No. 2, "xl*would be
entitled to earn said $250.00 in addition to.the $35.00
($15.00 plus $?0400). In illustration No. 3, the individual
would be entitled to earn $25.00 per month to make up the
deficit which the State Dapartmont of Public Welfare has
determined that he needs plus the said $250.00. In all of
these situations th,aabove income can be earned without re-
ducing the recipient's pension in any way.
We believe that what we have said above answers
your fifth and sixth questions. If we be mistaken, we will
be glad to answer any further inquiries on this subject.
Your seventh question is:
"Does Senate Bill No. 169 apply to a recipient
who failed to report 'his said employment.,in writing,
to the local office of Pubic Welfare, giving the name
and address of his employer or employers at the end of
each month, and giving the amount of his earnings dur-
ing the month just passed'? If not, would it apply
when such recipient properly reported his employment
after failure to report a given month?"
Senate Bill No. 169 provides in effect that an old
age recipient shall receive the benefits of said Act "provided
said recipient of old age pension'raports his said employment,
Honorable J. S. Murchison, Page 12
in writing, to the local office of Public Welfare, giving
the name and address of his employer or employers at the
end of each month, and giving the amount of his earnings
during the month just passed."
The word *rprovidedlt
as used in statutes usually,
though not always, implies a limitation or restriction on
what has preceded in the context. See Words and Phrases
for citation of numerous authoritios. It can also be used
in the conjunctive sen~seas in the place of tha word *'and**.
As used in the phrase in question, it is obvious to us that
it is not used in the conjunctive sense. The phrase in
question has no m:ianingas used in this Act unless it serves
as a restriction or limitation on what precedes it in the
body of the Act. It follows that Senate Bill No. 169 would
not be applicable to a recipient who failed to report his
earnings as provided by the above montioned phrase. By this
is meant that said Act has no application to earnings of a
given month which are not reported as orovided by said Act.
The Act would apply to such earnings of a recipient for any
given month provided they are properly reported.
Your eighth question is:
"Do the phrases 'seasonal and,occasional~
employment' and 'Dollars that is actually derived
and received in payment for labor actually per-
formed or services rendered' mean that Senate
Bill No. 169 applies to a recipient working for
himself? A tenant farmsr working on shares? A
farm owner harvasting seasonal crops and tending
to other farm duties for other periods?"
In answer to your eighth question, it is our opin-
ion that Senate Bill No. 169 applies to a .recipientwho is
work~ingfor himself as well as one working as an employee of
another. The phrases "seasonal and occasional employment*'
and "Dollars that is actually derived and received in payment
for labor actually performed or services rendered" are suffi-
ciently broad to support our conclusion. Keeping in mind the
purpose of the Act in question, we find no reason for restrict-
ing its application when its very lang,uageparrnitsa more
liberal interpretation.
Honorable J. S. Kurchison, Page 13
The word "employmenttlhas many nxanings. It has
been defined as that which engages or occupies and as that
which consumes time or attention. Webster's New Inter-
national Dictionary, Second Edition. The above definitions
clearly show that said word can refer to a person who is
self-employed as wzll as to on2 who is emplcys?dby another.
We might point out that the word 'Vemployer*~
is used
in another part of the Act! discussed in the preceding question,
and, at first impression, it might be inferred from the use of
this word that the Ast in question only aoplied to a recipient
who was an employee of anotb,:rand not one who was self-cmployad.
However, the only purpose of the phrase containing the word
"employer**is to require the reporting of the earnings of the
recipient. It clearly was not intended to describe that general
class of pers>ns to whom the Act could have application.
Your ninth question is:
"In order to avoid a conflict in the Federal
and State laws, can the Department interpret Senate
Bill No. 169 to apply only to recipients recaiving
income from agriculture as provided in Public Law
45?"
In answt3rto your ninth question, you are advised
that there is nothing in thz title or body of Senate Bill No.
169 which even remotely sugg,-:sts'thct
said Act is limited to
earnings from agriculture labor. We know of no rule of con-
struction which would have the effect of limiting the applica-
tion of said Act to earnings from agriculture labor. Your
ninth question is answered in the n-gative.
Your tenth question is:
"In order to avoid a conflict in the Federal
and State law, can Senate Bill No. 169 be inter-
preted to mean actual payment when reference is
made to 'grant'?"
The State Department of Public Welfare has always
denoted "grantV1as the amount of assistance a recipient should
nonorable J. S. Murchison, Pare 14
receive subject to statutory and constitutional limitations,
to provide himself with the basic necessities. Where an
individual needs $40.00 per month to provide himself with the
basic necessities and has an income of $25.00 per month, his
"grant" is $15.00. It is easily seen that the word "grant'r,
as used here, has a direct relation to a recipient's needs.
It is a mattar of common knowledge in Texas that
the payments made to old age recipients are not equal to the
"grant" because the Legislature has not appropriated sufficient
funds to pay the grants in full. The amount actually received
by a recipient is determined by the number of individuals on
the rolls and the amount each should receive. To illustrate:
'txfl needs $40.00 per month to provide himself with basic neces-
sities, and has an income of $15.00 ~per month. He is therefore
eligible to rcceive'$X.OO per month as old age assistance.
This $25.00 has always been denoted as a "grant" by the State
Department of Public Welfare. As a matter of fact rt~*v actually
receives less than %25.00 p:?rmonth bacaus? sufficient funds
have not been made available.
Neither the State Department of Public Welfare nor
any recipient knows how much assistance he will receive for
a given month until tim3 arrive? for each monthly payment to
be made. Consequently, we think that when the Legislature
used "grant" in Senate Bill No. 169, it had in mind what a
recipient should receive to provide himself with the basic
necessities and not what he actually does receive. Your
tenth question is answered in the negative.
Your eleventh question is:
"In the event it is impossible to interpret
Senate Bill No. 169 in such a manner which would
be acceptable under the Federal Social Security,
Act, must Senate ?ill No. 169 be put into actual
operation in Texas even though its operation would
cause the loss of Federal matching funds far old
age assistance?"
The answer to your eleventh question must be in the
affirmative. Under our system of government, the Legislature
makes the laws and the executive and judicial branches of the
Honorable J.-S. Murchison, Page 15
g.overnmentmust enforce them if they do not violate the
Constitution of the State or of the United States. That
the State may lose benefits by enforcing the law is a mat-
t-r for the Legislature alone, "No power of suspending
laws in this State shall be exercised except by the Legis-
lature." Texas Constitution, Art. 1, Section 28.
Federal authorities do not exercise a right of
superior control ovc:rthe matter of old age assistance laws
of this State. The program has its basis in mutual consent
of the State and Federal govarnments, If, therefore, the
State Logislature passes an Act to which the Federal govern-
msnt is not willing to give its consant, that Act is not in-
valid because obnoxious to the Federal authorities, in the
absence of a declaration of legislative intent that such Act
shall not be effective if the Federal authorities shall fail
to assent to its provisions.
The Legislature, by the Act under consideration,
has manifested an intont to libaralize the old age assistance
laws of this Stata. It has ths power to do so. It has not
provided that such liberalization shall be effective only if
the Federal Government shall give its consent, In such cir-
cumstances,? neithar you nor any other officer or agency of
the executive or ,iudicialbranch of the State:government has
authority to suspend Senate Bill No. 169 or to decline to put
it into operation.
.
WC trust that we have:satisfactorily answered all
of your questions. '
APPROVED JUL 24, 1943 Yours very truly
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS ATTORNEY GENERAL OF TEXAS
.This opinion considered and
approved in,limited conference
BY
/s/ Lea Shoptaw
Assistant
LS :f:o